34 Ala. 270 | Ala. | 1859
By the ancient common law, all offenses, including capital felonies, were bailable. And though by various statutes passed by parliament restrictions have been imposed upon the right of justices of the peace to let to bail; the court of king’s bench, in taking bail in cases of treason, murder, and other felonies, has. always been, and is now, limited only by its discretion. Rex v. Remnoni, 2 Term R. 169; Rex v. Marks, 3 East, 157 ; 1 Chitty’s Cr. L. 98, 129 ; Ex parte Baronet, 16 Eng. L. & Eq. 361; 2 Hale’s P. C. 129 ; 2 Hawk. P. C. ch. 15,
It thus appears that, according 1o the English practice, the court looks alone to the written evidence under which the defendant is held, and cannot receive extrinsic testimony ; that all offenses are bailabje before indictment, unless from an examination of the depositions taken before the committing magistrate,.it-appears that the defendant is guilty of a capita] felony; and that after an indictment for an offense punishable capitally, the court cannot inquire into the merits, for the reason that the evidence on which the indictment was found is not in writing, and^ if it were, could not be disclosed ; and the court, having no means of ascertaining otherwise, will, therefore, always imply that the grand jury has not indicted on insufficient proof, and so refuse to bail. — People v. Hyler, 2 Parker’s Cr. R. 572.
But the rales of the common law, thus established by the English decisions, have been, in effect, abolished by the provisions of our constitution and statutes in relation to bail in criminal cases. The 37th section of our bill of rights declares, that “all persons shall, before conviction, be bailable by sufficient securities, except for capita] offenses, where the proof is evident or the presumption great.” And under our statutes, upon the hearing of applications for bail, either before or after indictment, the court is not, as according to the practice in England, confined to the
By section 3669 of the Code it is provided, that “ the defendant cannot be admitted to bail, in cases which are or may be punishable with death, where the court or magistrate is of opinion on the evidence that the defendant is guilty of the offense in the degree, punishable capitally.” This section of the Code must be so construed as to make it conform to the 17th section of our bill of rights, above quoted. Accordingly, to justify a court in refusing bail, whether before or after indictment found, the judge must be of opinion, upon the evidence introduced upon the hearing of the application, that ‘the proof is evident, or the presumption great,’ that the defendant is guilty of the offense in the degree punishable capitally.
In Commonwealth v. Keeper of the Prison, 2 Ashmead, under a clause in the constitution of Pennsylvania, declaring that “all prisoners shall be. bailable by sufficient sureties, unless for capital offenses, where the proof is evident, or the presumption strong,” it was held, that it was a safe rule, where a malicious homicide is charged, to refuse bail in all cases where a judge would sustain a capital conviction, if pronounced by a jury on such evidence of guilt as was exhibited to him on the hearing of the application to admit to bail; and in instances where the evidence is of jess efficacy, to admit to bail. This decision was cited with approbation by the supreme court of Ohio, in the State v. Sammons, 19 Ohio, 139 ; and that court added — “ So with us in Ohio, if the evidence exhibited on the hearing of the application to admit to bail, be of so weak a character that it would not sustain a verdict of guilty, against a motion for a new trial, the court will feel it their duty, under the constitution, to adjudge the prisoner bailable by sufficient sureties.”
Much testimony is set out in this record, which, wlfile it is competent evidence against som^ of the defendants, must not be allowed to prejudice the others. In forming an opinion as to the guilt or innocence of any one of the persons accused, we, of course, look alone to so much of the evidence as, according to legal rules, would be admissible against him, if tried separately frem his co-defendants. We cannot say, upon the evidence before us, thus considered, that the ‘ proof is evident or the presumption great,’ that the petitioners, Stephen A. Bryant, William Bryant, and James Dobbins, are guilty of murder in the first degree. They are, therefore, entitled to bail as matter of right. We consider it our duty, however, upon the evidence before us, not to let the prisoner Eliza Byers to bail. Eor obvious reasons, we forbear to comment upon
It is ordered, that the motion of the defendant, Eliza Byers, to be let to bail, be overruled. It is further ordered, that the defendants, Stephen A. Bryant, William Bryant, and James Bobbins be admitted to bail; that the amount thereof in the case of Stephen A. Bryant be $3,000 ; in the case of William Bryant, $1,000 ; and in the case of James Dobbins, $500; and that the sheriff of Tuskaloosa county may discharge either of the said defendants above named, out of his custody, upon his giving a written undertaking, signed by himself and at least two sufficient sureties, agreeing to pay to the State of Alabama the amount above designated as the amount of bail in his particular case, unless he (the defendant giving such undertaking) appear at the next term of the circuit court for Tuskaloosa county, and from term to term thereafter until dischai’ged by law, to answer the offense of murder.